National Labor Relations Board v. City Disposal Systems, Inc.

PETITIONER:National Labor Relations Board
RESPONDENT:City Disposal Systems, Inc.
LOCATION:U.S. District Court for the Western District of Oklahoma

DOCKET NO.: 82-960
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 465 US 822 (1984)
ARGUED: Nov 07, 1983
DECIDED: Mar 21, 1984

ADVOCATES:
Norton J. Come – on behalf of the Petitioner
Robert P. Ufer – on behalf of Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – November 07, 1983 in National Labor Relations Board v. City Disposal Systems, Inc.

Warren E. Burger:

We’ll hear arguments next in National Labor Relations board against City Disposal Systems.

Mr. Come, I think you may proceed whenever you are ready.

Mr. Chief Justice, and may it please the Court:

This case, which is here on certiorari to the Sixth Circuit, involves the propriety of the Labor Board’s conclusion that an individual employee’s honest and reasonable assertion of a right that is provided for in a collective bargaining agreement, whose concerted activity was in the meaning of Section 7 of the National Labor Relations Act.

The underlying facts briefly are as follows: Respondent hauls garbage for the City of Detroit from a drop-off point to a landfill some 37 miles away.

The garbage is hauled by tractor trailers and normally a driver is assigned to a certain tractor trailer and when his vehicle is in for repairs he may be assigned to another one.

Respondent is a party to a collective bargaining agreement with the local Teamsters Union covering its drivers.

Section 1 of Article XXI of the Agreement provides that the employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety compliances prescribed by law.

It further provides that it shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified.

A further provision of the Agreement provides that the employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in unsafe operating condition unless the same has been approved as being safe by the mechanical department.

James Brown was a driver for the Respondent.

He normally drove Truck No. 245.

On Saturday, May 12, 1979, he had a near accident with Truck No. 244 driven by another employee, Frank Hamilton, when the brakes on 244 would not stop the truck at a landfill.

Hamilton took Truct 244 back to the drop-off point and with Brown present the mechanics told him that the truck would be fixed over the weekend or the first thing Monday morning.

Brown returned to work at 4:00 a.m. on Monday, May 14th.

He took out his Truck 245 to the landfill and found that the fifth wheel had a problem.

He returned to the drop-off point, talked to the mechanics and learned that the truck could not be fixed that day.

He then spoke to his supervisor, Jasmund, who told him to punch out and go home after confirming that Brown’s truck could not be fixed.

Brown punched out, but remained in the driver’s room, at which point Jasmund returned and requested Brown to drive Truck 244.

Brown said he would not do so since 244 had a brake problem.

Jasmund instructed Brown to go home and the two had a heated exchange.

Another supervisor, Madary, came on the scene, and when Brown reported that 244 had problems, Madary replied that half the trucks around here have problems and if Respondent tried to deal with all of them it would be unable to do business.

During the conversation, Brown asked, Bob, what are you going to do, put the garbage ahead of the safety of the men?

Madary did not reply nor did he or Jasmund make any attempt to show Brown that Truck 244 had, in fact, been repaired and was safe.

Brown went home and later that day he was discharged.

The Union’s Recording Secretary received notice of the discharge that day and he and Brown returned to the plant and sought to get Jasmund and Madary to put Brown back to work, but they refused to do so.

The next day Brown filed a written grievance under the collective bargaining agreement alleging that he had been discharged in violation of the contract.

The Union declined to pursue Brown’s grievance beyond the first step of the grievance procedure.

Harry A. Blackmun:

Does the record show why?

Norton J. Come:

The record indicates, in Respondent’s Exhibit 10, which is not printed in the Joint Appendix, but which is in the record, that they found no merit to the grievance.

Norton J. Come:

Apparently the truck was driven later that afternoon by another employee.

Byron R. White:

Mr. Come, if then the employee had filed a 301 suit against the employer for an illegal discharge, in order to win that, he would have had to prove a breach of the fiduciary duty that the Union owed him, wouldn’t he?

If he didn’t allege that, it would be dismissed.

Warren E. Burger:

Under fact cites that is right, Your Honor.

Byron R. White:

So that… But, instead of doing that, he now files with the Board, is that it?

Norton J. Come:

He filed an unfair labor practice charge with the Board.

The Board, upholding the decision of its Administrative Law Judge, concluded that the Respondent had violated 8(a)(1) of the National Labor Relations Act by discharging Brown.

William H. Rehnquist:

Mr. Come?

Norton J. Come:

Yes, sir.

William H. Rehnquist:

I read the Administrative Law Judge’s findings fairly carefully and I am interested to know what is the Board’s position as to the reason that the Administrative Law Judge assigned that the company used to discharge Brown?

Why did the Administrative Law Judge think that Brown had been discharged?

I don’t want exact quotes, but–

Norton J. Come:

The Administrative Law Judge found that Brown had been discharged for asserting his contract rights not to drive an unsafe truck; that he had a good faith and a reasonable belief at least that the truck was unsafe and that under the Board’s Interboro Doctrine the assertion of a reasonable and good faith contract claim is concerted activity protected by Section 7 of the Act.

William H. Rehnquist:

–What if the company contend that Brown was discharged for failing to obey an order, an order to get back and drive 244?

Now, would the Board’s response still be the same?

Norton J. Come:

I think it would, Your Honor, because the… If, in fact, Brown was engaging in concerted activity protected by Section 7, the mere fact that the company classified as as insubordination would not remove the protection of Section 7.

There is an issue in this case which was not reached by the Sixth Circuit and would be open on remand; namely, whether or not Brown, in fact, was refusing to drive this truck because of good faith beliefs that it was unsafe or whether there were other reasons for his refusal.

Byron R. White:

You are saying Brown is purported to exercise the rights given him by a promise in the contract?

Norton J. Come:

That is correct.

Byron R. White:

A promise that the employer made.

Norton J. Come:

That is correct, Your Honor.

Byron R. White:

Now, suppose there weren’t any specific promises about equipment, but the employer promised never to discharge anyone without proper cause.

I think that is a normal promise, isn’t it?

You don’t discharge people without proper cause.

So, the same facts happened and Brown… and he was fired and he claimed that that wasn’t good enough cause.

All I did was… I didn’t want to drive a truck without brakes and he took it to a grievance and the Union refused to press it and then he filed an unfair labor practice proceeding.

Don’t you, in effect, say that any breach of the employer of the collective bargaining contract is an unfair labor practice if it results in a discharge and regardless of whether or not the Union could or would ever be held guilty of a refusal to fairly represent employees?

Norton J. Come:

Well, I think that you may have to separate out a couple of problems in your hypothetical example.

Byron R. White:

It has them there, I know that.

Norton J. Come:

The Board’s basic position is that the right of an individual to assert a contract right in good faith and in reason–

Byron R. White:

Such as the right not to be fired without good cause even.

Norton J. Come:

–is protected by Section 7 against reprisal for asserting that right.

Now, it does not follow, however, that every assertion of a right under a contract can be followed by a refusal to work if you are not granted your claim, because if there is a no-strike clause in the contract, the activity, though it may be concerted might forfeit the protection of Section 7.

Now, in this case, you do have a work refusal, however, the question of whether that would render the activity unprotected in our view is not presented in this case because Respondent did not raise that issue either before the Board or the Court of Appeals.

The only issue that he raised, apart from the factual one as to whether or not, in fact, it was safety that motivated him, was whether the activity was concerted where it involved merely the action of an employee acting alone.

William H. Rehnquist:

And that is the Interboro Doctrine?

Norton J. Come:

That is the Interboro Doctrine.

William H. Rehnquist:

Okay.

I would like to ask you a hypothetical question about the Interboro Doctrine.

Supposing that a collective bargaining agreement provided that in the event of a dispute over an obligation to work overtime the employee had to work overtime as requested and file a grievance later.

And suppose an employee operating under that contract refused to do the overtime and simply walked off the job.

Now, would the Interboro Doctrine protect him even though he had not complied with the contract?

Norton J. Come:

I don’t think it would in that circumstance, Your Honor, because the contract there specifically made it clear, as I understand the example, that–

William H. Rehnquist:

Well then don’t you have a problem with the Board’s treatment of the contract here, because, as I understand the contract provision that he was working under, it didn’t provide that his refusal to work on the basis of safety would need only be honestly and reasonably held.

I think the contract requires more objective justification, yet the Board has simply substituted its own term, I think, for the safety provision.

Norton J. Come:

–No, Your Honor, that is not the position that we are urging here on our reading of the Administrative Law Judge’s findings which the Board adopted, although to be sure, in some Board decisions, there is some confusion as to whether the Board is applying a purely subjective standard or whether it requires that the refusal not only be in good faith, but reasonable.

The facts of those cases will show that the decision rests not only upon the subjective standard, but there has to be some objective basis that makes the employee’s claim reasonable.

And, the ALJ here so found in both respects and that is the question we are presenting here and that is the submission that we are making.

Thurgood Marshall:

Well, is it slightly reasonable to protect the people in Detroit from hugh sludge trucks running around without brakes?

Norton J. Come:

I believe it is, Your Honor, and for that reason I believe that is why the parties negotiated the kind of contract clause that you have here which guarantees the employee not only a safe truck, but it provides that it shall not be a violation of this agreement where employees refuse to operate such equipment unless such refusal is unjustified.

But, a point that I want to make though is that as we view the record in this case the unprotected aspect on which the Respondent dwells at great length in its brief here is not presented in this case.

The only issue that was presented here is whether or not the fact that the employee acted alone in forcing a collectively bargained right made it not concerted activity.

That is the Interboro Doctrine.

That is the basis on which the Court of Appeals affirmed Respondent’s position and for that theory it makes no difference whether the employee here had merely protested driving an unsafe truck and was fired for making the protest or whether he momentarily hesitated or whether, in fact, he refused to drive as he did here.

William H. Rehnquist:

Would he have had to have protested at all to invoke the Interboro Doctrine?

Norton J. Come:

Well, I think he has to give the employer some indication that it is a contract right that he is claiming.

William H. Rehnquist:

Well, suppose he does exactly what he is told up to a point, then just refuses, walks off, gets fired, just the way it happened here, except he doesn’t make any statement at all at the time and the next day he files a grievance, as I believe he did here.

Is the mere filing of that grievance a sufficient protest to invoke the Interboro Doctrine?

Norton J. Come:

I think that it would be because, as a matter of fact, even the courts that have disapproved or rejected the Interboro Doctrine and there is a conflict in the circumstance, feel that to discharge an employee for filing a grievance is a violation of 8(a)(1) because filing a grievance is, though it is filed by an individual employee, concerted activity.

William H. Rehnquist:

Would the Board recognize any distinction between firing this person… firing him because he filed a grievance as opposed to firing him because he refused to carry out a lawful order?

Norton J. Come:

Well, in some cases, it would, but as I tried to explain, in many cases where it would be a breach of a no-strike clause to refuse to work the activity would forfeit the protection of Section 7.

That is not the case here because of the special contract clause here which, in effect, is an exception to the no-strike clause, undoubtedly for the reason that Justice Marshall pointed out, that in the safety situations it is often a small comfort to have the right to file a grievance after you have risked your life and lost.

William H. Rehnquist:

But, the Interboro Doctrine isn’t limited to safety at all, is it?

Norton J. Come:

No, it is not limited to safety, but the point I am trying to make is that the Interboro Doctrine deals essentially with the issue that is here; namely, whether or not an individual’s assertion of a contract right in good faith and reasonably based is concerted activity for purposes of Section 7.

Byron R. White:

Of course, if the answer is yes, as you say it is, and the Board thinks it is, then the Board immediately proceeds to determine whether this contract right, which is a protected right, has been violated.

And, here, it would be whether or not the employee actually had some reasonable grounds for his actions and if he did, why, there is an unfair labor practice.

Isn’t that… It is as simple as that.

And they would also do that even if this case had gone right straight to arbitration and the arbitrator had decided that he had been properly fired.

Norton J. Come:

Then you get into the further question–

Byron R. White:

Yes.

Norton J. Come:

–as to the circumstances under which the Board will defer to the arbitrators.

Byron R. White:

Suppose the employee had never asked the Union to… anything and suppose no grievance had been filed.

Why couldn’t the employee, if this is an unfair labor practice, why can’t the employee go right to the Board and forget the whole grievance machine?

All he has to do is say I have a right, it is a joint right, I am expressing a collective right under the contract, and it was violated by the employer.

Norton J. Come:

He could.

Byron R. White:

So, the employee never needs to exercise the machinery.

That would just make mincemeat of the contract, wouldn’t it?

Norton J. Come:

No, it would not.

I mean the Section 7 rights can operate in tantem with contract rights.

William J. Brennan, Jr.:

Well, Mr. Come, does the Board make it a practice, when the employee, in fact, initiates a grievance procedure, does the Board make it a practice to pursue a complaint in cases like this?

Interboro says you may, but what is the Board’s practice?

Does it do it as a matter of practice?

Norton J. Come:

For a time under the Collier Doctrine the Board would defer in these situations where there was available a grievance arbitration.

William J. Brennan, Jr.:

And tell the employee go that route even if he hadn’t started?

Norton J. Come:

If that were available.

The current Board policy is not to defer unless the employee or the Union has pursued the grievance procedure and there has been a determination.

Byron R. White:

By an arbitrator.

Norton J. Come:

By an arbitrator.

William J. Brennan, Jr.:

You mean if initiated when the complaint is filed, but not completed, that is the arbitration proceeding, the Board then proceeds?

Norton J. Come:

Well, if it has been initiated, they will wait.

William J. Brennan, Jr.:

They will wait.

It was completed here.

Norton J. Come:

Well, it wasn’t completed in any formal–

Byron R. White:

They filed a grievance.

It was rejected and the Union refused to go any further so that terminated the entire procedure.

Norton J. Come:

–Well, the Union has, as Your Honor pointed out, I believe, a lot of reason why they do not proceed with the grievance.

Byron R. White:

But, their regular policy now is that not to defer in circumstances like… in this case.

Norton J. Come:

That is correct.

Byron R. White:

Even if a grievance has been filed, it has been rejected by the employer, and then the Union refuses to carry it any further, the Board regularly does not defer.

Whereas, if it goes to… If the Union agrees to take it to arbitration and that proceeding is not completed, then it will defer.

But now if there is an arbitrator’s decision there against the employee, what then?

Norton J. Come:

Well, the Board will look to see whether that complies with the Spielberg criteria, whether or not the procedure was fair and regular, whether the determination is consistent with the polices of the Act and whether the arbitrator, in fact, decided the statutory issue.

Byron R. White:

So, they sort of sit in review of the arbitrator?

Norton J. Come:

Well, not to determine his fact findings, redetermine his fact findings.

However, the issue before the Board and the arbitrator is not necessarily the same as the Second Circuit pointed out in the Interboro case which was the first performance of this Doctrine.

The arbitrator is enforcing the contract.

What the Board does under Interboro is to protect the employee’s right to make a contract claim and in order to encourage the employee to exercise his rights under the contract, the Board merely requires a good faith, reasonable assertion of that right, because otherwise, as Judge MacKinnon pointed out in the Banyard case, which is cited in our brief, employees would be discouraged from asserting their contract rights except in the clearest cases.

So that Interboro, in effect, gives through Section 7, a little more than a contract does in order to ensure that what the employees bargained for under the contract they really get.

I would like to save the rest of my time for rebuttal.

Warren E. Burger:

Mr. Ufer?

Robert P. Ufer:

Mr. Chief Justice, and may it please the Court:

Regarding the factual background of this matter, it is Respondent’s position that four facts clarify the very narrow scope of the issues presented by this case.

First, Mr. Brown did not warn or attempt to warn any other employees of the alleged unsafe condition of the truck.

He made no verbal communication, he made no bulletin-board message, he simply went home, having never inspected the truck or driven the truck for over a year prior to the morning he refused to drive.

Harry A. Blackmun:

I thought he was told to go home.

Robert P. Ufer:

His final instruction by both supervisors–

Harry A. Blackmun:

His preliminary instruction, he was told to go home.

Robert P. Ufer:

–There was some confusion in the record as to that point, Justice Blackmun.

His final instruction, which Respondent submit is a binding instruction upon that employee, was to drive the truck and he refused to drive the truck.

As indicated on the dismissal sheet which is in the Joint Appendix, he was discharged for disobeying orders, refusing to drive Truck 244.

Byron R. White:

Well, we don’t have to decide here, do we?

Robert P. Ufer:

No, that is not an issue before the Court at this time.

Continuing with the facts about Brown, Brown did not ask for his Union steward or seek Union assistance of any nature on the morning of May 14th when he refused to drive the truck.

In fact, another employee drove that truck the same morning without incident and the following two days the truck was driven on its regular shift.

The fourth factual point that we believe is of critical importance in this case is that all the parties had agreed to binding grievance arbitration as the collective bargaining agreement dispute resolution procedure.

Now, against this factual background, both the Board and the Sixth Circuit found individual action by Brown and the Board seeks to utilize the fiction of constructive concerted activity under the Interboro Doctrine to bring an individual employee’s refusal to perform assigned work within the scope of Section 7 and to activate the Board machinery to resolve a collective bargaining agreement dispute.

Byron R. White:

Well, would you… I take it you wouldn’t be here if Brown had said I won’t drive the truck because of the brakes and because I have a right under the contract not to drive a truck with bad brakes.

Then, if he was ordered to drive and he refused–

Robert P. Ufer:

If he articulated… If the reason for his dismissal was the articulation of the grievance, that is correct.

We would not be here and we have indicated that in our brief.

In this case, the reason for his dismissal was the refusal to drive the truck, not to the submittal of the grievance.

The submittal of the grievance came–

William H. Rehnquist:

–Are you on firm ground so far as the findings by the Administrative Law Judge and the Board are concerned?

Did the Administrative Law Judge find the facts as you say they are?

Robert P. Ufer:

–The indication… The Administrative Law Judge’s opinion is that Brown was discharged for refusing to follow a company order.

There is not a holding by the Administrative Law Judge that he was discharged for filing a grievance.

William H. Rehnquist:

I read it over and I frankly was confused as to which of those it was.

Robert P. Ufer:

I think–

Byron R. White:

Wasn’t he… Isn’t it clear though that he refused to work… He refused to work because of his concern about the brakes and that the Board and the Administrative Law Judge found that he was exercising a contract right in refusing to do so?

Robert P. Ufer:

–The Board… It is our position that the Board does not… The arbitrator has provided for… Under the collective bargaining agreement, the arbitrator is to make a decision as to whether or not Brown’s conduct was justified when he refused to drive the truck under Section XXI of the collective bargaining agreement.

In this case, we submit that what the Board does, as indicated in its American Freight decision, it will come in and apply a lesser standard, essentially subjective, good faith standard, not the standard determined and agreed upon by the parties to the contract.

And, for that reason, we don’t believe the Board made that determination or had the right to make that determination.

We respectfully submit that Section 7 of the National Labor Relations Act should be interpreted by this Court according to it plain meaning.

We believe this is consistent with the legislative history.

Byron R. White:

But, the point you just made wouldn’t be foreclosed even if it were found that what he was exercising was a collective right.

Robert P. Ufer:

That is correct.

Byron R. White:

You can still argue that it would be a collective right, but the Board is just misapplying the Act unless it wait for the arbitrator.

Robert P. Ufer:

That is correct.

Harry A. Blackmun:

Or it still has to be corrected to be–

Robert P. Ufer:

Both issues are raised in this case.

Robert P. Ufer:

Counsel for the Board has indicated that we have not raised the protected issue.

It is our position that in exception number one we specifically raised the issue whether Brown’s refusal to drive the work… I believe the language that we utilized in that situation was… We made the exception whether the charging party, James Brown was engaged in concerted activity protected by Section 7 of the Act when he refused to drive the truck.

So, it is our position that both the protected and the concerted issues are raised in this case and under either ground there is no basis for an unfair labor practice.

Byron R. White:

–You are defending the decision below that this was not an exercise of a collective right?

Robert P. Ufer:

That is correct.

Byron R. White:

But, you are defending that position.

Robert P. Ufer:

We are defining that position.

We are also defending the position that it is not protected in that rather than working and grieving he walked off the job.

That violates the no-strike cause which is very broad in this contract.

And, even if Mr. Brown had been accompanied by five other employees, had they simply walked off the job while the conduct may have been concerted under Section 7, it would not have been protected.

That is our position.

Thurgood Marshall:

Let me get back to the facts again.

Is it admitted that this very truck almost had an accident which his truck the day before?

Robert P. Ufer:

It was two days before.

Thurgood Marshall:

Because of its brakes?

Robert P. Ufer:

Justice Marshall, two days before there was almost an accident at the landfill, but the driver of the truck at that time continued to drive the subject truck and when he took it back to the mechanics, the mechanics told him they would fix it over the weekend or first thing Monday morning.

Mr. Brown came in after having already made a run Monday morning.

He then never went to the truck to make an inspection as required by company policy.

Thurgood Marshall:

Is all of your answer yes to my question?

Robert P. Ufer:

All of my answer–

Thurgood Marshall:

The question is is that the same truck that almost had an accident with him two days before?

Robert P. Ufer:

–It was the same truck.

Thurgood Marshall:

Your answer is yes.

Robert P. Ufer:

That is correct.

John Paul Stevens:

May I ask you a question while we have got you interrupted?

Just on the issue of concerted activity, putting aside all the protected questions, and you made reference to the plain language of the statute, you would agree, as I understand it, that if he had been discharged for filing a grievance without regard to its merits that that would be covered by the Act and that would be a concerted activity?

Robert P. Ufer:

If that was the motivation for his discharge, that is correct.

John Paul Stevens:

How is that… Why is that any more concerted than what was involved here just looking at the requirement of joint action?

Robert P. Ufer:

I don’t believe this Court has spoken to that issue.

A number of circuit courts that have spoken to that issue have found the submittal of a grievance, the formal submittal of a grievance to be concerted and they may have gone on the ground that policy considerations, that that furthers the grievance arbitration procedure and dispute resolution mechanism.

John Paul Stevens:

But, you are prepared to assume for purposes of your argument that that individual action is “concerted” within the meaning of the Act?

Robert P. Ufer:

A formal assertion of a contract violation and the formal grievance, if the motivation… and we would, under the analysis this Court set forth in Bernhart and Sims, if the motivation is the submittal of that grievance and not the underlying–

John Paul Stevens:

Now you are focusing on the employer’s motivation–

Robert P. Ufer:

–That is correct.

John Paul Stevens:

–in order to decide whether the employee’s action was concerted.

Robert P. Ufer:

That is correct.

In order to constitute an unfair labor practice, you need in the first instance–

John Paul Stevens:

I understand that, but I am just interested in the word “concerted” at this point.

Robert P. Ufer:

–Fine.

We are conceding that a formal grievance submittal, that act in and of itself, is concerted.

John Paul Stevens:

So once you make that concession… I find it hard to accept your plain language argument.

That is the reason I want to be sure I understood you correctly.

Robert P. Ufer:

We think there is some kind of contradiction in that regard.

We acknowledge that difficulty.

In the face of the circuit court decisions, I think, again, they went under the policy considerations to promote the grievance and to make sure there isn’t a chilling effect of the access to grievance and they indulge… I think possibly you might under the Mushroom Transportation test, where you are preparing for or inducing concerted activity, that that explains a grievance situation or very possibly a grievance situation could be explained under the assisting labor organizations, the earlier language in Section 7 of the Act, and that it does not have to go–

Byron R. White:

There was a grievance filed here, wasn’t there?

Robert P. Ufer:

–There was not a grievance at the time of the discharge.

There was a grievance subsequent in time.

I believe it was filed the next morning.

It is very clear in this case–

Byron R. White:

So, again, why would his assertion be any less concerted than an actual grievance?

Robert P. Ufer:

–We believe that in that situation, if the Court is going to find–

Byron R. White:

In these facts, when he was fired, there was no grievance?

Robert P. Ufer:

–That is correct.

Byron R. White:

But, he was asserting the very right that they filed a grievance over.

Robert P. Ufer:

The record is clear that there is no reference whatsoever to the collective bargaining agreement by Mr. Brown.

There is simply a confrontation between Mr. Brown and his supervisor where his supervisor is instructing him to drive the truck and Brown is saying he does not want to drive the truck and that the truck is unsafe.

There is no reference to any term or section of the collective bargaining agreement.

There is no mention of the word “grieve” or even the term “collective bargaining agreement”, nor does he ask for his Union steward or for an Union official.

And, in that case we would distinguish this situation from a formal grievance for those reasons.

Warren E. Burger:

When did he refuse to drive the truck?

Robert P. Ufer:

On the morning–

Warren E. Burger:

When he refused in the evening, why didn’t that give rise to a grievance right then and there even without waiting until the following morning when he could contact the business agent or the shop steward?

Robert P. Ufer:

–I believe, in fact, he made contact with his shop steward and came in that afternoon.

And, what we are saying, to come within the protection of Section 7, an employee has got to afford the employer some notice as to what it is that he is doing besides simply stating–

Warren E. Burger:

Should he drive the truck in the meantime?

Robert P. Ufer:

–He should drive the truck in the meantime.

He has… It is Respondent’s position that if he does not drive the truck… If he makes the unilateral, individual determination not to drive the truck, then he has either got to come within the justified language set forth in the collective bargaining agreement as found by the Union and ultimately an arbitrator to excuse his refusal or he must come within the standard in Section 502 of the National Labor Relations Act where Congress spoke specifically and established a standard where an individual employee can refuse to undertake a job assignment.

That standard is clearly a higher standard of abnormally dangerous condition in an objective showing as this Court indicated in the Gateway Coal decision.

Thurgood Marshall:

The only way that I could be protected, because I drive an automobile, from a truck with no brakes is for a man to go on and drive it.

Robert P. Ufer:

I believe what he would have to do is make a showing–

Thurgood Marshall:

I think you said a minute ago that his only way was he would have to drive the truck and I am sure you didn’t mean that.

Robert P. Ufer:

–What I meant to say, Justice Marshall, is that if he does not drive the truck, if he makes that determination, then he does so at his peril and he must be vindicated by the arbitrator.

And, if the arbitrator finds–

Thurgood Marshall:

If he knows the truck has no brakes, he has to drive it?

Robert P. Ufer:

–He has to… There has to be–

Thurgood Marshall:

On the road with me?

[Laughter]

Robert P. Ufer:

–He has to make–

Thurgood Marshall:

If you want me to make that ruling, I am not going to make it.

Robert P. Ufer:

–Justice Marshall, what I would want in this case would be consistent with company policy that if he is going to refuse to drive the truck at a minimum he inspect the truck to ascertain whether or not it has been fixed.

In this case, it is company policy to inspect the truck and it is clear from the record he never went anywhere near the truck nor had driven the truck for a year prior to his refusing to drive it.

Another driver drove that same truck without incident later that morning.

So, in that setting, we are stating that the dismissal was justified.

Thurgood Marshall:

I take it the company is lucky.

What is the fact with respect to what repairs had been made over the… in that interval?

Robert P. Ufer:

The record is silent, Mr. Chief Justice.

Warren E. Burger:

Then what should the Administrative Law Judge do, treat that as a presumption that the condition had remained unchanged from Friday night until Monday morning?

Robert P. Ufer:

I think, consistent with the Union determination that the grievance didn’t have merit, that the substantial evidence in this case would indicate that where he does not inspect the truck, contrary to company policy, and where the truck is that same morning driven by another employee without incident, I think in that situation that the logical inference and reasonable inference is that the truck had been repaired, but the record is silent as to that point.

Warren E. Burger:

Then the case comes down to whether or not this was a contumacious refusal even to determine the facts.

Warren E. Burger:

Is that the position of the employer, this employee was guilty of that kind of conduct?

Robert P. Ufer:

That is correct.

We believe, returning to the definition of concerted, looking to the legislative history of the National Labor Relations Act, did Congress indicate anything that would indicate something other than a plain meaning interpretation of concerted.

We submit there is nothing to that effect.

On the contrary, Congress spoke in two important regards that support a plain-meaning interpretation in this case.

In proposed Section 8(a)(6) in the Taft-Hartley amendment, Congress considered and specifically rejected this section 8(a)(6) which would have made an employer’s collective bargaining agreement contract violation an unfair labor practice.

We submit that the Board’s Interboro Doctrine effectuates the very end that Congress considered and rejected when it adopted Section 8(a)(6).

The Interboro Doctrine transforms alleged collective bargaining agreement violations and in some instances non-violation into unfair labor practices at the option of the employee.

In the C & C Plywood case, before this Court which involved the unilateral company implementation of a premium pay plan during the terms of a collective bargaining agreement, this Court reviewed the Section 8(a)(6) legislative history and specifically concluded that Congress had not given the Board the broad generalized jurisdiction to determine the rights of parties under all collective bargaining agreements, that Congress has specifically chosen to leave collective bargaining agreement enforcement to the usual processes of law under Section 301.

We believe Interboro contravenes this principle of C & C Plywood.

Congress spoke in another regard.

They implemented Section 502 of the Act and provided a specific safety standard to allow immediate work stoppage.

We submit there is no justification for the Board to use the Interboro Doctrine to construe a lesser standard from within this very same Act.

In the Gateway Coal decision, this Court interpreted Section 502 as not allowing work stoppages under the slender thread of subjective judgment.

There was a need for objective evidence of an abnormally dangerous condition as required in Section 502, yet the Board, through the Interboro Doctrine construes a subjective standard in many instances in contravention of 502 and in contravention of the Gateway Coal holding.

We respectfully submit to affirm the Interboro Doctrine is to disregard this legislative history and this Court’s pronouncements in C & C Plywood and in Gateway Coal and it is to allow the Board to expand its jurisdiction contrary to unambiguous language in Section 7 and Congress’ clear intention.

Faced with a problem of the Act’s plain meaning and the legislative history surrounding Section 502 and proposed Section 8(a)(6)–

Byron R. White:

As I understand the Court of Appeals, it said that even if Brown was exercising a right under the contract, he wasn’t exercising a right protected by Section 7, because he was doing it just for his own account.

Robert P. Ufer:

–That is correct.

Byron R. White:

Only for himself.

Robert P. Ufer:

That is correct.

Byron R. White:

Now, do you defend that?

Robert P. Ufer:

We do.

We believe–

Byron R. White:

Suppose you are wrong on that.

Suppose we disagreed with you on that narrow ground which is the ground of Court of Appeals relied on.

Shouldn’t we send it back?

Robert P. Ufer:

–We believe in this case it is established in the record that his action, if it were found to be concerted, it is nevertheless not protected in that it is a violation of the no-strike clause also.

Byron R. White:

That may be, but you are now defending the decision on an alternate ground.

Robert P. Ufer:

That is correct.

Byron R. White:

Which you have a perfect right to present, but we certainly don’t have to rule on it.

Robert P. Ufer:

That is correct.

Byron R. White:

I suppose that issue was before the Court of Appeals.

Robert P. Ufer:

We believe it was and the Court of Appeals, when it expressed its complete agreement with the Kohls decision of the D.C. Circuit, we believe that that incorporated the protection argument and I think the Board has acknowledged that in their reply brief.

Both issues were considered and, in fact, addressed by implication by this–

Byron R. White:

So, you could lose on the very narrow ground that the Court of Appeals used and still win the case in the long run on two or three other grounds that you have already argued.

Robert P. Ufer:

–That is correct.

That is our position.

Now, faced with the Act’s plain meaning in the legislative history, the Board turns to a different argument and asserts that the Court should defer to its interpretation.

We would simply like to point out in this regard that in the Weingarten decision of this Court, the Court indicated that it should not step aside and rubber stamp the Board’s determinations that run contrary to the language and the tenor of the Act.

Similarly, in the Edward DeBartolo Corporation decision earlier this spring, a decision interpreting Section 8(b)(4), the publicity proviso and the distribution requirements provided therein, this Court expressly did not allow the NLRB to apply so generous a standard as to strip the statutory restriction from the Act.

If Congress had intended that broad a scope, they would not have placed the restriction in the Act in the first instance.

We submit that the Board is doing precisely this thing with the Interboro Doctrine.

They are asking the Court to step aside and rubber stamp their determination and that determination is utilizing a standard so generous as to strip the concerted requirement from Section 7.

We would also like to point out that the policy underlying deference to the Board as was articulated in Weingarten was to allow the Board to construe the statute in light of changing patterns of industrial life, yet the most significant changing pattern here is the imergence of binding arbitration as a favored dispute resolution procedure, to utilize self-government in the work place through grievance arbitration.

The Interboro Doctrine flies in the face of this fundamental emerging pattern of industrial life and we submit for that reason it is not appropriate to afford the Board any deference in its determination.

Policy considerations, we would respectfully submit, also do not justify a departure from a plain-meaning interpretation of concerted.

We submit that it is clear the Interboro Doctrine frustrates and does not serve fundamental national labor policies.

Addressing specific labor policies, the need for certainty is of critical importance in labor relations to maintain and promote industrial stability, particular in situations of employee discharges and potential work stoppages.

Yet, the Interboro Doctrine kept all of the parties, including the employees, adrift on a sea of total uncertainty.

It takes only a cursory review of the Board’s Interboro decisions over the past few years to appreciate the magnitude of this uncertainty.

There are conflicting Board and arbitration decisions.

We believe this is highlighted by the American Freight decision.

In American Freight, the Board found the employer committed an unfair labor practice by enforcing his contract right as affirmed by the arbitrator.

The arbitrator in that case concluded there was no contract violation, yet the Board stepped in and said, well, we apply a lesser standard and they found an unfair labor practice.

William H. Rehnquist:

Do you cite that in your brief, Mr. Ufer, American Freight?

Robert P. Ufer:

We do.

William H. Rehnquist:

Was it NLRB versus American Freight?

Robert P. Ufer:

That is correct.

There are similarly conflicting and contradictory Board decisions.

Robert P. Ufer:

We would direct the Court’s attention to the very recent Board decision in Comet Fast Freight.

When that case is analyzed against the Kohls decision in the D.C. Circuit and in the instant case, almost all of the critical facts are identical.

It is a truck safety issue.

The employee asserts he does not want to drive the truck.

There is no discussion or warning to any other employees, and, in fact, another employee in each one of these cases drove the truck that very same day.

Yet the Board reached opposite legal conclusions.

They found there was no concerted activity in Comet Fast Freight.

This Comet Fast Freight decision would seem to invite inquiry by this Court of the Board’s counsel whether the NLRB has recently changed its position on Interboro, whether the Board has stepped back from Interboro.

We would submit either the Board has changed its position or its application of the doctrine is totally inconsistent.

Similarly, the Yellow Fast Freight Board decision which is another recent Board decision that is cited in the Board’s reply brief is also hopelessly contradictory with earlier precedent.

In that case, there was an individual employee’s refusal to drive the truck and it was only a momentary refusal, engaging for some 15 to 20 minutes with his supervisor as to whether or not his driving a truck would violate the contract term relating to safety.

The Board concluded that that conduct constituted insubordination and, therefore, not protected against.

That conduct is lesser conduct than in the instant case where the employee walks off the job and doesn’t perform the work at all.

We would submit that another fundamental uncertainty arises from the Interboro Doctrine in that it denies all of the parties their agreed-upon, substantive, contract term.

It essentially makes mincemeat out of the contract because the Board is stepping in and applying, as in American Freight… It specifically indicates it is applying a lesser substantive safety standard.

We further submit with respect to uncertainty that there are inordinate delays that compound the uncertainty in this whole area where the Board intervenes.

In collective bargaining agreements, there is often specific time frames provided for the grievance procedure and ultimately arbitration.

These often conclude within 30 to 60 or 90 days at the outside.

Using this case as an example, the Board decision was not reached until over two years after the incident occurred and with the appeals through the court there is even greater delay.

Turning to other policy considerations which we believe are of vital important, Interboro creates an entirely duplicative procedural structure for collective bargaining agreement dispute resolution with all of the attendant time, uncertainty and expense of duplication.

Byron R. White:

Well, it is an old story though that the Board will or will not find something an unfair labor practice even though it may or may not violate the contract.

Robert P. Ufer:

That is correct.

Byron R. White:

Isn’t that right?

Robert P. Ufer:

That is correct.

I think–

Byron R. White:

And also, even if some arbitrator has held that it is not a violation of the contract, the Board isn’t necessarily foreclosed.

Robert P. Ufer:

–That is correct.

Byron R. White:

You acknowledge that?

Robert P. Ufer:

We acknowledge that.

We believe the qualitative distinction with respect to the Interboro Doctrine is that it transforms all collective bargaining agreement disputes into unfair labor practices.

Byron R. White:

How would you sort them out?

Robert P. Ufer:

I would return to an actual plain meaning interpretation of concerted is our position, and, if, in fact, there are two or more employees undertaking an action or agreeing upon a course of action–

Byron R. White:

So, you would say the Board could never second guess an arbitrator if all the employee ever was doing was asserting his own right.

Robert P. Ufer:

–The Board… I think the correct standard for the Board’s intervention in that case would be the Spielberg Doctrine of fairness and reasonable.

Byron R. White:

Well, why… He doesn’t mention another employee or anything else.

He wants his job back, he wants back pay.

Why is that concerted?

Robert P. Ufer:

It is our position that would not be concerted.

Byron R. White:

Even if the arbitrator… Even if it had gone to arbitration.

Robert P. Ufer:

I think the clarification in that regard… The first position is that the action would not be concerted by the individual, and the second position would be it would be appropriate for deferral to the arbitrator.

And, I think on either of those two grounds the employer’s conduct could be affirmed.

Sandra Day O’Connor:

But then why did you concede at the beginning that a grievance filed by a single employee is concerted?

Robert P. Ufer:

We don’t… In light of the Circuit Court decision on that point, we believe that there is an argument to be made to that effect, but again–

Sandra Day O’Connor:

That just flies in the face of your plain meaning.

Robert P. Ufer:

–That is correct and if I made that concession, then very possibly I ought to retreat from that, because I think a plain meaning interpretation offers certainty into this situation and that it is–

Byron R. White:

You should retreat from your suggestion that Spielberg is enough protection for your provision is an individual grievance has gone to arbitration.

Robert P. Ufer:

–I believe that is a separate issue and those standards, as they have more recently evolved in Board decisions, I think there has been a distortion and a perversion of the Spielberg Doctrine.

But, focusing on Spielberg for a moment, what we would submit the Board can determine is that if the discharge is for… If the affected employee is contending that discharge is because he is the Union organizer or he is the Union steward and the employer is saying that he is discharged for failure to do his job duties or to obey an instruction, then there can be a Board review to undertake that motivational analysis.

But, as to whether or not he is doing his job, which is the issue in this case, we would submit that there is no position for the Board to make that determination.

We respectfully submit that the concerted standard expressly set forth in Section 7 should be defined according to its plain meaning.

We believe this is consistent with the legislative history and we also believe it is consistent with this Court’s precedence defining the scope of protected activities under Section 7 in other circumstances and the basic labor principle set forth in those precedents, the labor principles of majortarianism, of not allowing an individual to control the entire process and to control the collective bargaining agreement administration, the precedence of presumption of arbitrability.

John Paul Stevens:

Let me interrupt you for a minute.

Let me be sure I get your position on this.

Supposing your client fired a man for filing a grievance.

There is no contract that says he has a right to, just say they set up a grievance procedure.

He files a grievance.

He gets discharged for that.

Unfair labor practice or not?

What is your position?

Robert P. Ufer:

The act of filing a grievance?

John Paul Stevens:

This man had not been fired because he wouldn’t drive the truck, he was fired two days later for filing the grievance.

Robert P. Ufer:

For filing a grievance.

John Paul Stevens:

What is your position on it?

Robert P. Ufer:

We would contend that the act of filing a grievance is actual concerted activity between the employee–

John Paul Stevens:

You say that would be an unfair labor practice?

Robert P. Ufer:

–That would be–

Byron R. White:

Is that… Now that is three times.

[Laughter]

You answered it that way the first time and then you answered Justice O’Connor another way and now you have returned to your first position.

If you are filing a grievance, you are–

Robert P. Ufer:

–Again, I would say–

Byron R. White:

–You would say that is concerted activity.

Robert P. Ufer:

–I believe the analysis should be an actual concerted analysis and if it is found that the conduct between the individual and his Union steward in the filing of that grievance could constitute actual concerted activity.

Thank you.

Warren E. Burger:

Mr. Come, do you have anything more?

You have two minutes.

Norton J. Come:

Yes, I would just like to make two points.

In the first place, I would like to make clear that our position is not that every violation of a collective bargaining agreement is an unfair labor practice.

It is that discipline taken against an employee for asserting a contract right is an unfair labor practice.

Now, in this case–

Byron R. White:

Any contract right?

Norton J. Come:

–Yes.

Byron R. White:

Any contract right.

Norton J. Come:

Here the right asserted is to refuse to carry out the employer’s order.

The right not to drive an unsafe truck doesn’t mean anything unless it applies when the employer assigns the employee to drive the truck.

So, you can’t separate out the refusal from the contract right.

The ALJ and the Board found that factually the employee had this contract right and he reasonably and in good faith–

Byron R. White:

It is your position here though that any assertion by an employee, whether on his own behalf literally or on somebody else, is concerted activity.

Norton J. Come:

–That is correct.

If it is made in good faith and is reasonably grounded in the contract.

Norton J. Come:

Now–

Byron R. White:

Well, if the General Counsel filed… Finds reason to file a complaint, why there is… It is concerted activity I suppose.

Norton J. Come:

–But, nonetheless, the mere issuance of a complaint does not–

Byron R. White:

Doesn’t bind the Board.

Norton J. Come:

–That is correct because it must be established by a preponderance of the evidence and–

Byron R. White:

Well, yes, but it is concerted activity if it is in good faith–

Norton J. Come:

–And reasonably based.

Now, the second point–

Warren E. Burger:

Your time has expired, Mr. Come.

Thank you, gentlemen, the case is submitted.

The Honorable Court is now adjourned until tomorrow at 10:00.